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  • News: DHS Publishes Final Rule on Designation of Chile for the Visa Waiver Program

    [Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
    [Rules and Regulations]
    [Pages 17852-17854]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2014-07254]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Part 217
    
    RIN 1601-AA70
    
    
    Designation of Chile for the Visa Waiver Program
    
    AGENCY: Office of the Secretary; DHS.
    
    ACTION: Final rule; technical amendment.
    
    -----------------------------------------------------------------------
    
    SUMMARY: Eligible citizens, nationals and passport holders from 
    designated Visa Waiver Program countries may apply for admission to the 
    United States at U.S. ports of entry as nonimmigrant aliens for a 
    period of ninety days or less for business or pleasure without first 
    obtaining a nonimmigrant visa, provided that they are otherwise 
    eligible for admission under applicable statutory and regulatory 
    requirements. On February 28, 2014, the Secretary of Homeland Security, 
    in consultation with the Secretary of State designated Chile as a 
    country that is eligible to participate in the Visa Waiver Program. 
    Accordingly, this rule updates the list of countries designated for 
    participation in the Visa Waiver Program by adding Chile.
    
    DATES: This final rule is effective on March 31, 2014.
    
    FOR FURTHER INFORMATION CONTACT: Gianfranco Corti, Department of 
    Homeland Security, Visa Waiver Program Office, (202) 282-8732.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
    A. The Visa Waiver Program
    
        Pursuant to section 217 of the Immigration and Nationality Act 
    (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the 
    Secretary), in consultation with the Secretary of State, may designate 
    certain countries as Visa Waiver Program (VWP) countries \1\ if
    
    [[Page 17853]]
    
    certain requirements are met. Those requirements include, without 
    limitation: (1) A U.S. Government determination that the country meets 
    the applicable statutory requirement with respect to nonimmigrant 
    visitor visa refusals for nationals of the country; (2) an official 
    certification that it issues machine-readable passports that comply 
    with internationally accepted standards; (3) a U.S. Government 
    determination that the country's designation would not negatively 
    affect U.S. law enforcement and security interests; (4) an agreement 
    with the United States to report, or make available through other 
    designated means, to the U.S. Government information about the theft or 
    loss of passports; (5) a U.S. Government determination that the 
    government accepts for repatriation any citizen, former citizen, or 
    national not later than three weeks after the issuance of a final 
    executable order of removal; and (6) an agreement with the United 
    States to share information regarding whether citizens or nationals of 
    the country represent a threat to the security or welfare of the United 
    States or its citizens.
    ---------------------------------------------------------------------------
    
        \1\ All references to ``country'' or ``countries'' in the laws 
    authorizing the Visa Waiver Program are read to include Taiwan. See 
    Taiwan Relations Act of 1979, Public Law 96-8, section 4(b)(1) 
    (codified at 22 U.S.C. 3303(b)(1)) (providing that ``[w]henever the 
    laws of the United States refer or relate to foreign countries, 
    nations, states, governments, or similar entities, such terms shall 
    include and such laws shall apply with respect to Taiwan''). This is 
    consistent with the United States' one-China policy, under which the 
    United States has maintained unofficial relations with Taiwan since 
    1979.
    ---------------------------------------------------------------------------
    
        The INA also sets forth requirements for continued eligibility and, 
    where appropriate, probation and/or termination of program countries.
        Prior to this final rule, the designated countries in the VWP were 
    Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, 
    Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, 
    Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
    Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of 
    Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, 
    Switzerland, Taiwan, and the United Kingdom.\2\ See 8 CFR 217.2(a).
    ---------------------------------------------------------------------------
    
        \2\ The United Kingdom refers only to British citizens who have 
    the unrestricted right of permanent abode in the United Kingdom 
    (England, Scotland, Wales, Northern Ireland, the Channel Islands and 
    the Isle of Man); it does not refer to British overseas citizens, 
    British dependent territories' citizens, or citizens of British 
    Commonwealth countries.
    ---------------------------------------------------------------------------
    
        Citizens and eligible nationals of VWP countries may apply for 
    admission to the United States at U.S. ports of entry as nonimmigrant 
    visitors for a period of ninety days or less for business or pleasure 
    without first obtaining a nonimmigrant visa, provided that they are 
    otherwise eligible for admission under applicable statutory and 
    regulatory requirements. To travel to the United States under the VWP, 
    an alien must satisfy the following:
        (1) Be seeking admission as a nonimmigrant visitor for business or 
    pleasure for ninety days or less;
        (2) be a national of a program country;
        (3) present an electronic passport or a machine-readable passport 
    issued by a designated VWP participant country to the air or vessel 
    carrier before departure; \3\
    ---------------------------------------------------------------------------
    
        \3\ For countries designated as VWP countries on or after 
    November 17, 2008, including Chile, only passports containing an 
    electronic chip that includes the biographic and biometric 
    information of the passport holder are authorized for VWP travel. 
    However, for countries designated as VWP countries prior to November 
    17, 2008, passports issued before October 26, 2006 need not contain 
    an electronic chip with the holder's biographic and biometric 
    information, provided that such passports comply with International 
    Civil Aviation Organization machine readable standards. See 8 U.S.C. 
    1732(c)(2).
    ---------------------------------------------------------------------------
    
        (4) execute the required immigration forms;
        (5) if arriving by air or sea, arrive on an authorized carrier;
        (6) not represent a threat to the welfare, health, safety or 
    security of the United States;
        (7) have not violated U.S. immigration law during any previous 
    admission under the VWP;
        (8) possess a round-trip ticket, unless exempted by statute or 
    federal regulation;
        (9) waive the right to review or appeal a decision regarding 
    admissibility or to contest, other than on the basis of an application 
    for asylum, any action for removal; and
        (10) obtain an approved travel authorization via the Electronic 
    System for Travel Authorization (ESTA). For more information about the 
    ESTA, please see the interim final rule at 73 FR 32440 (June 9, 2008), 
    and implementing notice at 73 FR 67354 (Nov. 13, 2008).
    
    See sections 217(a) and 217(b) of the Immigration and Nationality Act 
    (INA), 8 U.S.C. 1187(a)-(b); see also 8 CFR part 217.
    
    B. Designation of Chile
    
        The Department of Homeland Security, in consultation with the 
    Department of State, has evaluated Chile for VWP designation to ensure 
    that it meets the requirements set forth in section 217 of the INA, as 
    amended by section 711 of the Implementing Recommendations of the 9/11 
    Commission Act of 2007, Public Law 110-53. The Secretary has determined 
    that Chile has satisfied the statutory requirements for initial VWP 
    designation; therefore, the Secretary, in consultation with the 
    Secretary of State, has designated Chile as a program country.\4\
    ---------------------------------------------------------------------------
    
        \4\ The Secretary of State nominated Chile for participation in 
    the VWP on June 3, 2013.
    ---------------------------------------------------------------------------
    
        This final rule adds Chile to the list of countries authorized to 
    participate in the VWP. Accordingly, beginning March 31, 2014, eligible 
    citizens and nationals of Chile may apply for admission to the United 
    States at U.S. ports of entry as nonimmigrant visitors for business or 
    pleasure for a period of ninety days or less without first obtaining a 
    nonimmigrant visa, provided that they are otherwise eligible for 
    admission under applicable statutory and regulatory requirements.
    
    C. Technical Corrections
    
        This final rule also deletes from the regulatory text outdated 
    language regarding Belgium and unnecessary language regarding Tawian. 
    First, the regulatory text includes a specific requirement for Belgian 
    citizens traveling under the VWP after May 15, 2003 to present a 
    machine readable passport. This requirement for a machine readable 
    passport has been extended to all VWP countries. See INA section 
    217(a)(3), 8 U.S.C. 1187(a)(3). Therefore, the specific reference to 
    Belgium has been removed. Second, the regulatory text referencing the 
    Secretary's authority to designate Tawain to the VWP is unnecessary and 
    has been removed for clarity.
    
    III. Statutory And Regulatory Requirements
    
    A. Administrative Procedure Act
    
        Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency 
    may waive the normal notice and comment requirements if it finds, for 
    good cause, that they are impracticable, unnecessary, or contrary to 
    the public interest. The final rule merely lists a country that the 
    Secretary of Homeland Security, in consultation with the Secretary of 
    State, has designated as a VWP eligible country in accordance with 
    section 217(c) of the INA, 8 U.S.C. 1187(c). This amendment is a 
    technical change to merely update the list of VWP countries. Therefore, 
    notice and comment for this rule is unnecessary and contrary to the 
    public interest because the rule has no substantive impact, is 
    technical in nature, and relates only to management, organization, 
    procedure, and practice. For the same reasons, pursuant to 5 U.S.C. 
    553(d)(3), a delayed effective date is not required.
        This final rule is also excluded from the rulemaking provisions of 
    5 U.S.C.
    
    [[Page 17854]]
    
    553 as a foreign affairs function of the United States because it 
    advances the President's foreign policy goals and directly involves 
    relationships between the United States and its alien visitors. 
    Accordingly, DHS is not required to provide public notice and an 
    opportunity to comment before implementing the requirements under this 
    final rule.
    
    B. Regulatory Flexibility Act
    
        The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended 
    by the Small Business Regulatory Enforcement and Fairness Act of 1996 
    (SBREFA), requires an agency to prepare and make available to the 
    public a regulatory flexibility analysis that describes the effect of a 
    proposed rule on small entities (i.e., small businesses, small 
    organizations, and small governmental jurisdictions) when the agency is 
    required ``to publish a general notice of proposed rulemaking for any 
    proposed rule.'' Because this rule is being issued as a final rule, on 
    the grounds set forth above, a regulatory flexibility analysis is not 
    required under the RFA.
        DHS has considered the impact of this rule on small entities and 
    has determined that this rule will not have a significant economic 
    impact on a substantial number of small entities. The individual aliens 
    to whom this rule applies are not small entities as that term is 
    defined in 5 U.S.C. 601(6). Accordingly, there is no change expected in 
    any process as a result of this rule that would have a direct effect, 
    either positive or negative, on a small entity.
    
    C. Unfunded Mandates Reform Act of 1995
    
        This rule will not result in the expenditure by State, local, and 
    tribal governments, in the aggregate, or by the private sector, of $100 
    million or more in any one year, and it will not significantly or 
    uniquely affect small governments. Therefore, no actions were deemed 
    necessary under the provisions of the Unfunded Mandates Reform Act of 
    1995.
    
    D. Executive Order 12866
    
        This amendment does not meet the criteria for a ``significant 
    regulatory action'' as specified in Executive Order 12866.
    
    E. Executive Order 13132
    
        The rule will not have substantial direct effects on the States, on 
    the relationship between the National Government and the States, or on 
    the distribution of power and responsibilities among the various levels 
    of government. Therefore, in accordance with section 6 of Executive 
    Order 13132, DHS has determined that this final rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
    F. Executive Order 12988 Civil Justice Reform
    
        This rule meets the applicable standards set forth in sections 3(a) 
    and 3(b)(2) of Executive Order 12988.
    
    G. Paperwork Reduction Act
    
        The Department of Homeland Security is modifying OMB Control Number 
    1651-0111, Arrival and Departure Record, to allow eligible Chilean 
    passport holders to use the Electronic System for Travel Authorization 
    (ESTA) to apply for authorization to travel under the VWP prior to 
    departing for the United States. CBP uses the information to assist in 
    determining if an applicant is eligible for travel under the VWP. The 
    Department is requesting emergency processing of this change to 1651-
    0111 as the information is essential to the mission of the agency and 
    is needed prior to the expiration of time periods established under the 
    PRA. Because of the designation of Chile for participation in the VWP, 
    the Department is requesting OMB approval of this information 
    collection in accordance with the Paperwork Reduction Act of 1995 (44 
    U.S.C. 3507).
        The addition of Chile to the Visa Waiver Program will result in an 
    estimated annual increase to information collection 1651-0111 of 
    180,000 responses and 45,000 burden hours. The total burden hours for 
    ESTA, including Chile, is as follows:
        Estimated annual reporting burden: 4,830,000 hours.
        Estimated number of respondents: 19,320,000 respondents.
        Estimated average annual burden per respondent: 15 minutes.
    
    List of Subjects in 8 CFR Part 217
    
        Air carriers, Aliens, Maritime carriers, Passports and visas.
    
    Amendments to the Regulations
    
        For the reasons stated in the preamble, DHS amends part 217 of 
    title 8 of the Code of Federal Regulations (8 CFR part 217), as set 
    forth below.
    
    PART 217--VISA WAIVER PROGRAM
    
    0
    1. The authority citation for part 217 continues to read as follows:
    
        Authority:  8 U.S.C. 1103, 1187; 8 CFR part 2.
    
    
    0
    2. In Sec.  217.2 the definition of the term ``Designated country'' in 
    paragraph (a) is revised to read as follows:
    
    
    Sec.  217.2  Eligibility.
    
        (a) * * *
        Designated country refers to Andorra, Australia, Austria, Belgium, 
    Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, 
    Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, 
    Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, 
    New Zealand, Norway, Portugal, Republic of Korea, San Marino, 
    Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, 
    Taiwan, and the United Kingdom. The United Kingdom refers only to 
    British citizens who have the unrestricted right of permanent abode in 
    the United Kingdom (England, Scotland, Wales, Northern Ireland, the 
    Channel Islands and the Isle of Man); it does not refer to British 
    overseas citizens, British dependent territories' citizens, or citizens 
    of British Commonwealth countries. Taiwan refers only to individuals 
    who have unrestricted right of permanent abode on Taiwan and are in 
    possession of an electronic passport bearing a personal identification 
    (household registration) number.
    * * * * *
    
    Jeh Charles Johnson,
    Secretary.
    [FR Doc. 2014-07254 Filed 3-28-14; 8:45 am]
    BILLING CODE P
    
    
    
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